Rajendra
S/O Namdeo Rane vs State Of Maharashtra Through Its ... on 6
January,
2015
Bench:
Anoop V. Mohta
WP3441.14.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3441 OF 2014
Rajendra s/o Namdeo Rane,
Aged about 52 years,
Occupation ‐ Service,
(Senior Clerk), Resident of
Prashant Nagar, Vanraj Marg,
Amravati, Tahsil and District
Amravati. .. Petitioner
.. Versus ..
1] State of Maharashtra,
through its Secretary,
Ministry of Cooperative and
Textile, Mantralaya,
Mumbai‐32.
2] Divisional Joint Registrar,
Cooperative Societies, Amravati,
District‐Amravati. .. Respondents
..........
Mr. S.G. Joshi, Advocate for
petitioner,
Mr. A.D. Sonak, Assistant Government
Pleader for respondents.
..........
CORAM : ANOOP V. MOHTA AND
A.R. JOSHI, JJ.
DATED :
JANUARY 06, 2015.
ORAL
JUDGMENT : (Per : ANOOP V. MOHTA, J.)
1] Rule. Rule made returnable forthwith. The
petition
is heard finally by consent of the learned counsel for the parties.
2]
The petitioner, by this petition, submitted to grant a protection in service
after invalidation of
the
caste claim, in view of the judgment dated 22.12.2014 in Arun s/o Vishwanath
.vs. State of
Maharashtra
and others, 2015 (1) Mh.L.J. 457, whereby a Full Bench of this Court, while
considering
to grant service protection and similar benefits, by referring to the earlier
Supreme
Court
judgments and the judgments of this Court, has concluded as under :
53.
In view of above, we answer question no.1 in the affirmative, holding that the
relief
of
protection of service after invalidation of caste claim can be granted by the
High
Court
on the basis of the decision of Hon'ble Supreme Court in the case of Kavita
Solunke
.vs. State of Maharashtra and others,
reported in 2012 (5) Mh.L.J. (S.C.) 921
=
(2012) 8 SCC 430, and the subsequent decision in the case of Shalini .vs. New
English
High School Association and others,
reported in 2014 (2) Mh.L.J. (S.C.) 913 =
(2013)
16 SCC 526.
75.
We, therefore, do not enter into the merits of the claim and leave it for the
concerned
Benches to decide, on the facts and circumstances of each case, whether the
protection
need to be granted or not. But we conclude in this judgment that (
i)
mere invalidation of the caste claim by the Scrutiny Committee would not entail
the
consequences
of withdrawal of benefits or discharge from the employment or
cancellation
of appointments that have become final prior to the decision in Milind's
case
on 28.11.2000.
(ii)
upon invalidation of the caste claim by the Scrutiny Committee, the benefits
obtained
or appointments secured from 28.11.2000 up to 18.10.2001, can be
withdrawn
or cancelled, depending upon the terms of the employment, if any, in
writing.
(iii)
the benefits obtained or appointments secured after coming into force of the
said
Act
on 18.10.2001 can be withdrawn or cancelled immediately upon invalidation of
the
caste
claim by the Scrutiny Committee.
(iv)
the benefits of protection in service upon invalidation of the caste claim is
available
not only to the persons belonging to "Koshti" and "Halba
Koshti", but it is
also
available to the persons belonging to Special Backward Class category on the
same
terms as is available to "Koshti" and "Halba Koshti", and
(v)
the claim of the persons belonging to Nomadic Tribes, Vimukta Jatis and Other
Backward
Class category shall be decided on the lines of the decision of the Apex
Court
in the case of R. Unnikrishnan and another .vs. V.
K. Mahanudevan and others,
reported
in 2014 (4) Mh.L.J. (S.C.) 1 = 2014 (4) SCC 434.
3]
The Full Bench of this Court in Arun (supra) has accepted the basic principles
to grant
protection
of services even to other category/caste than "Halba/Koshti" even
after invalidation of
the
caste claim by the Scrutiny Committee, by following of the Supreme Court
judgments stated
to
be under Article 142 of the Constitution of India.
Now
the issue is also settled by this court in this regard as the High Court under
Articles 226 and
227
of the Constitution of India, in view of above, requires to follow the Supreme
Court
judgments,
irrespective of nature of judgment under Articles 141 or 142 of the
Constitution of
India.
Learned
counsel appearing for the parties, therefore, submitted to pass the protective
order on
similar
lines.
4]
The petitioner applied as belongs to 'Koli Mahadeo' (Scheduled Tribe) and
participated in the
proceedings.
By order dated 22.6.2012, the scrutiny committee declined to grant validity
certificate,
as prayed. However, held that the petitioner belongs to "Koli", which
is not the
Scheduled
Tribe it
is
a Special Backward Class (SBC). The petitioner, therefore, restricted the
prayer
to grant protection in service in view of the above law.
5]
In the present facts, the petitioner has been in service since 1996 now
declared to be belonging
to
SBC, the protection can be extended even to such community, in view of specific
observation in
paras
60 and 61, held as under :
"..It
is made clear that the respondent in the said case shall not be entitled to
claim
any
benefit in future as a Scheduled Caste candidate, but no benefit admissible to
him
as
an OBC candidate shall be denied. Following the said decision of the Apex
Court,
the
Division Bench of this Court in Rakesh Dafade's case (supra) has granted
protection
to the persons belonging to "Koli" caste falling in the Special
Backward
Class
category.
ig
In view of the aforestated law laid down by the Apex Court after considering
the
effect
of the Government Resolutions dated 1561995
and
3062004,
which
are
applicable
to all the persons belonging to the Special Backward Class category, we are
of
the view that the protection granted in Milind's case to the persons belonging
to
caste
"Koshti" or "Halba Koshti" in terms of the decision of the
Apex Court in Milind's
case,
is also available to all the persons belonging to the Special Backward Class
category
included in the Government Resolution dated 1561995.
There
cannot be
any
different treatment for the persons, who are similarly situated, merely for the
reason
that in most of the cases, the persons belonging to caste "Koshti" or
"Halba
Koshti"
have approached the Apex Court for grant of protection. The interpretation of
Section
10 of the said Act placed by the Apex Court in Shalini's case, applies with
equal
force
to the guideline Nos.14 and 15 in Madhuri Patil's case. In view of this, we do
not
find
any justification or propriety in the action of the Government of India in
refusing
to
grant protection to the persons belonging to the caste other than
"Koshti" or "Halba
Koshti".
We answer question No.(a) in para 55 above, holding that the persons
belonging
to Special Backward Category are entitled to the same protection as has
been
granted to the persons belonging to caste "Koshti" and "Halba
Koshti".
6]
This is not a case of any fraud or misrepresentation. The bonafide caste claim
and related
issues
were pending since long. We are inclined to exercise discretion similar to
extent the
protection
of service as provided in other similarly situated cases. We have to treat
equals equally.
No
case of fraud or misrepresentation is found. The petitioner, however, requires
to place on the
service
record his caste certificate for future purpose. Therefore, following
conditions and order :
O
R D E R
(a)
The petitioner is entitled for protection of service, however, not entitled for
any further caste
benefits
on the basis of invalidated caste certificate, except a continuity of service.
(b)
The privileges/benefits granted after 28.11.2000 on the basis of the earlier
caste certificate
that
he belongs to 'Mahadeo Koli" Scheduled Tribe, the respondent/employer are
at liberty to
withdraw
the said benefit/privilege and may restore the position as on 28.11.2000
depending
upon
the written service agreement.
(c)
The petitioner to submit a fresh caste certificate to complete the formality of
service record, at
earliest,
preferably within a period of nine months. Both the parties to cooperate
accordingly.
Parties
to do the needful within a period of two months from the date of receipt of
copy of this
order
for the same.
The
petition is allowed accordingly. Rule is made absolute in above terms. No
costs.
A.R. JOSHI, J. ANOOP V. MOHTA, J.
‐0‐0‐0‐0‐
Gulande
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